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tv   [untitled]    February 7, 2014 6:30am-7:01am PST

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adopted by us, at this meeting tonight, unless one of us asked for us to be pulled or to be calendared for discussion. i don't understand that procedure, and maybe someone can explain this to me. i see, a series of rather serious allegations against the high level official in the public utilities commission saying that she violated
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several aspects of conflict of interest, working at a paid commission at another job and lobbied the public utilities commission to give contracts that she worked for which would have aamounted to $250,000 that she would have been a beneficiary of that and i wind up agreeing with the stipulation and i have no problem with it and obviously underlying it, our staff must have done a fine job of working on it with the fppc. and in bringing about this stimulation. but, why is it that something like this comes to us, and
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without telling the public and i think that the education of the public, and on this, a high level public utilities officials lobbying her own agency for $200,000 for lobbying for a company that she works for and that is fairly significant in terms of conflict of interest and we should be delving into it and the staff must have to come up with this and we should be talking about it and discussing it more and analyzing it and we should be telling the members of the public about it, and educating the public about it, and if nothing else, just to blow our own horn, i mean that we have people who are coming here, and saying, that, the three meetings that i have been at saying and that you guys don't do your job and this is an indication to me that the staff did do their job.
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and terms of the findings and the woman is admitting that she committed these offense and she is going to have to pay a fine, and you could argue about whether or not that is enough or not. but she is, it is in effect to finding a guilt and a plea of guilty, or that is fine, but can someone please explain to me, why the procedure is, as it comes to us, it would have been considered that we accepted it, and agreed to it, and the public never would have known, what our thoughts were about it. and why don't, what is this procedure in could someone tell me what this is about? >> how to do the regulations of the commission, regarding the results of the investigations, there are several types of documents settlement agrees, dismissed, proposals for dismissal of complaints that the staff creates a document for and sends to the commission. and if the commission agrees
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with those documents, and does not calendar it, then the staff recommendations are adopted and some of those documents are very simple and some like these are more come complex and it is incumbent on the commissioner to determine which of these documents deserves discussion by the commission and which one are simple and cut and dry enough to accept the staff's recommendation. and for most of the time that the commission had this procedure, it required two commissioners to calendar such a document. but, a little over, maybe a year, year and a half ago, the commission determined that that standard was too high of a, or too high for the commission to use and it was lowered instead to a single commissioner and can calendar any of these such documents. >> and commissioner, keen and, let me further that point and the change made in response to
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the grand jury investigation and you know we took many of those recommendations seriously and i think that was really a good one of theirs. and the idea of reducing it, made it such that if any commission had a problem, it would be calendared or any commission had a question. to mr. st. croix's point, we are also trying to balance efficiency, with adjudicating matters with the group, that we find to have significant complexity or for which there are lingering concerns. and this would have been calendared even if you had not done it. you are not the only one to request this one to be calendared. and i think that the commission by and large does a good job of recognizing when a matter should be brought before the commission and as, mr. st. croix said, the matter would otherwise have been heard in closed session, but for the fact that the fppc had already issued a determination, and so, these are typically not, even
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when discussed among the commissioners, done so in, or with the public present and now if we want to discuss a change to that prior, whereby they are automatically calendar and we discuss one at every meeting we can do that. but, i think that that, that decision is for a separate time. and i think that today, we should focus on adjudicating the actual matter. >> madam chair? >> we will indeed, focus on adjudicating it and in fact, as i said, i intend to vote for the stimulation. but, i think that in regard to the procedures themselves, where we have a matter of such public significance, that shows a conflict of interest to this extent, that it should be something that routinely this commission will take up and that it will be calendared for discussion and that we do
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discuss it and we have the staff talk about it and we get into the background of the investigation and we have and let the public know what it is that we have done in relation to a matter of significant public interest, relating to a conflict of interest by a high official. and benefiting by working for another company and voting and lobbying her department. i think that we, and at some point in the future, picking up on what commissioner hur said, we should change our procedures we should talk about it and analyze it with the members of the public, and in addition to that, get some sort of report from the staff about how this, how this out come came about, what were the negotiation?
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s what was, what were the investigations? to give some sort of background, the kind of thing that a judge would want in regard to see that there was a substantial basis for accepting a stimulation or accepting a resolution of a case. >> i just think to do it in this, to have a procedure whereby, something like this can just not be discussed, and we voted, we have accepted it, and the public never hears us talk about it, it is not a good idea. and it feeds into the stuff that i have been hearing now, and i am a new member and this is my third meeting and it is easy to say i know because i have not been around like the rest of you have and i mean no disrespect to anyone here in regard to the sincerety to
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which you all do your jobs, but here, if nothing else, the staff is hiding its light under a bushel basket. if it comes up with an out come like this, which, is a good out come, and it shows that they did their job. and we just have it as a matter of procedure go through and we would say nothing, and it is passed and it sounds like they are very, foolish thing for me and for us to do, and at a minimum for the public relations standpoint. >> commissioner keen i certainly do not disagree with your point of view on this. you may want to bring it up again at the end of the meeting and perhaps it should be calendared at a future meeting where we can discuss it further and make a decision about whether or not we want to
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change the procedure as commissioner hur indicated. so, it might make a note about that. i have a different view and i am not sure that i understand commissioner's keane's concerns, because this stimulation lays out the factses and it is a public document. and the public can read it and all that we are being asked is to say that we concur with the findings that have been set forth here, and if we were to, if we, if there is a question about accepting the facts, as i understand it, that would have to be done under california law, under a private hearing, not in a public hearing. this is so that the newspapers
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can read this and laid out what she did and why it is a violation of the law and we can discuss it and say that we agree it, but i don't really understand how you feel that we are not making the public aware of, and it has been calendared as an item, on the calendar. and any member of the public can read this document. and we have heard from two members of the public, giving us the differing views, necessarily, and apparently on the seriousness of the conduct. but, if we are going to, if we are going to challenge the staff if we think that the staff was wrong, and then that we need something else, and as i understand it, that has got to be done in private, initially. and then, when you make your, and we make our final conclusions, and it becomes public. >> madam chair?
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i have not challenged the staff and i am complimenting the staff and in regard to one thing that i don't understand that commissioner renne said is that if we wanted to discuss this, and we go into it, and it would have to be done in the private session and i am looking here at the letter that i got from mr. st. croix, relating to this matter, and when i first got it. and in the final paragraph, he says, due to the fppc public deliberation adecember macing of the attached exhibit they have advised the staff that the ethic's commission should be conducted in open session, not in private. okay. >> you said that it has to be done in a private session, that is not what mr. st. croix is saying here, that is not what the city attorney is saying. >> but we do it in open session and, that is what we are doing now. because it was requested that we put it on the calendar. >> and i am sorry, could i just quickly interject?
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i think that the discussion is getting too far afield from the agenda item. and so, i think for purposes of public notice, i think that this is a discussion that if it is going to be had, should be had once this issue is ago ahead agendaized. >> right. but, just one thing, if i may say this, my understanding is that what makes it possible for us to discuss this here today, is that we do already have a stipulation where all parties have agreed to the facts as presented here. if that were not the case, then that would be a private closed hearing,; is that correct?? >> no. >> no. >> if we were debating the permits of the case, it would be prior to a settlement or as a stipulation, and that would
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be a closed case? >> or a session, i mean? >> normally a stipulation like this is in closed session, it becomes a public document when the commission has adopted it. >> i see. >> but because this particular settlement has been held in open session, at the fppc already, and it makes it a unique case, so we are a little bit outside of our normal procedure on that. >> right. >> so it has to have been decided before we could make it public. >> yeah, we don't bring stipulations to the commission, unless the respondent has agreed to the procedure to that. >> which is... >> i am sorry. >> my other question is, now, i guess that i don't understand the areas of jurisdiction between the state fppc and the san francisco ethics commission. so, this case was brought to both of us, and the fppc has already decided and ruled on it and now, we are about to do that. >> right. >> and the fppc is part of the settlement, and has to do the violation of the state law, and our part of the settlement and has to do with the violations of the local law.
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>> okay. >> commissioner andrews you had a comment? >> well, we are hearing from, commissioner keane. and i guess that i was a little, struck by when mr. st. croix said that we were going to find ourselves in a unique situation, by discussing this publicly. i was not clear about that and it feels like, it feels like we should have some amount of participation on the front end that does not have us here. and i don't know what that is and i don't know, at what point that happens, but because it was a public hearing, at the fppc, is that right? >> yes. >> it was..., >> yes. >> it just feels like we are being backed into the corner of having to have a discussion that is either nice to have new, or late to the game, i don't understand the full process themselves and so would
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they be having this discussion, in public? or in private? they are hearing and we said that we will discuss this and typically in closed session. and somehow, they did. what if they discussed it in the closed session >> they discussed it in public session. >> i guess what i am struggling with, the moment that they do that, they immediately set some balls in motion for us that then, in some kind of a way have us talking about it tonight, just like this, which makes it feel like i want or not necessarily the staff did not do the good work because i know that they did but it feels like the commission did not get an opportunity to indulge in some kind of a way and i don't know what that is. it feels like there has to be a front end that we would have been able to have the opportunity to discuss it in the closed session. >> and we completed the negotiations back in december. and just as an accident, of calendaring your january meeting was a few days before
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ours. and had their meeting been a few days later we might be in a different situation. >> and that is the piece, that is the procedural or process piece that i am a little tripped up in, which then,... >> but, they, i mean they are operating under a different set of requirements than we are, and because we have, we all have to follow state law, but we also have additional requirements that the san francisco police charter places on us and they are more restrictive than the fppc has. >> commissioner keane. could i ask madam chair and the city attorney could explain it. this is before us, right now, for a vote, whether we will vote up or down, the stipulation, and that enjoining with the fppc,; is that correct?? >> right, the fppc has approved their portion of the settlement and i think that what is before us now is whether the commission wants to approve the violations of local law, that
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were admitted to the stipulation. >> i plan on voting for it, what if we all turned it down tonight, what would happen then? >> i can answer that. >> okay. >> the fppc would likely sever their part out and, renegotiate that part with the respondent and move on without us. and then we would have to renegotiate with the respondent for our own settlement. and then, if the respondent will not come to terms with us, then we end up going to a hearing on the merits, which is a finding of probable cause and a public hearing on the merits. >> thank you, that is, that is quite helpful. >> and so, in regard to our deliberations of this matter, if we were to decide determining whether or not we are going to enter into the
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stipulation in order to do that we have to get more information for our hearings. and could we go into everything, or would, i think that we can in terms of what you are saying in the letter to us on december 17th, saying that the ball is now in our court to determine whether we are going to go along with it and making the determination, whether we are going to go along with it if we wanted to hear, let's get some of the background of this and let's get some statements from the person who is charged let's get the statements from the officials of the pec and what they think about it and whether they think this is, or this is okay. or how they look at it as one of their employees. those are all things that i could see, some of us maybe saying, yeah i would really like to hear that. could we do that now this evening? >> no. >> you would have to do it. >> no. >> why not. >> because the substance of the
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investigation remain confidential and even after a settlement agreement is agreed to and published to the public. the details of the investigation are required to be confidential by the san francisco charter to the maximum extent allowed by the state law. >> all right, but so aside from the negotiations, suppose that we wanted to hear and we have supreme power, and suppose that we want to hear from the members of the puc and the people who are involved with this action, and could we have subpoenaed them in here for tonight and taken their testimony? >> yeah. >> yes, >> we could? >> yes. >> well, okay. >> and in that, and in a public hearing on the merits, yes. and i believe that we could also ask them to testify in a closed session, if you wanted to hear from them in that part of the investigation. >> we could do it in an open session in front of the public. >> no. >> we could not.
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>> no. >> no. not until we get to the point where there is a hearing on the merits and that is all public. >> i am sorry. >> i think that what i am going to have to do is having a conversation with you after this meeting explaining this procedure. >> i understand, i am just having great difficulty trying to figure out we are being told that we are supposed to deliberate about this stipulation, and i am having great difficulties with the whole idea of deliberating if we can't get information relating to how we make-up our minds in that deliberation, and there is something more willing in there, maybe it is just me. >> it has never happened to us. >> in the ten years that i have been here, this is only the second time that we have had a joint settlement with the fppc and this is not common occurrence and in this particular case, this has never happened before and it is not something that we anticipated
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and had a process in place to handle. >> okay. >> fair enough. >> thank you, madam chair. >> so, as to the merits of the stipulation itself, and discussion of which way we might decide on this, commissioners do we have any comments on that? >> i have several questions. >> my first question has to do with the status of the contract. on page 7 of exhibit 1, it describes that in may, 2013, green returned all of the payments. are they... was that simply a voluntary returning of the funds has the contract been terminated? what is the status? >> yes, there is no contract between the puc and green for all. >> and so the puc terminated the contract? >> i believe that green for all did. >> green for all terminated the contract. >> i believe so.
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>> and the puc, agreed to that termination? >> yes. >> one thing that struck me in the penalty discussion, was that there was not much discussion of factors a, through, c. in the exhibit 1. and so i am curious as to what investigation we did and what, or how the staff came out on any intent to conceal or deceive and whether it was deliberate, intentional or in ad vert ant. >> with respect to the severity, it is addressed in
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the, it is one of the more serious violations of the conduct code and then, the... >> the suspect of the penalty amount, and i think that, at least to the two accounts and staft took into consideration, the penalty that the respondent would pay the fppc. and so that and also, she had no prior history with the commission, and she had returned all of the money that she had received from the green for all during the time, and when these events occurred. >> what is the most severe
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penalty that we leveed for something like that? >> they are not able to find a similar case regarding these types of violations. and then, the commission's history. >> okay. >> and then, what about the next two factors? >> was there a presence, or in tent to conceal or mislead? >> i do not believe that this was any intention to conceal or deceive or mislead. >> and i know that mr. st. croix, you mentioned at the outset that there could be questions that would delve into things that would not be public and i want to be cosmic that i don't step into that. >> okay >> but i am curious as to the basis of that determination, what did she say that made it apparent that there was no intent to conceal. because it is a little bit difficult to understand how someone like her does not
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understand what she is doing when she is accepting $17,000 from an entity that is engaging in a $200,000 contract with puc. >> that is a very legitimate question to ask and so it is a combination of, you know, the staff interviews with the respondent and the superiors, and you know, and in making a judgment call based on those and it is also, a determination that there isn't and we don't have any way to believe that there is any credible evidence otherwise. >> and there is not that we know of, and to find evidence that there was not intent to deceive. and i guess that you are making credibility and determinations based on how she answers the
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questions and what the evidence is before you, and so i am curious about what she said, or what evidence she presented to you to indicate that this was somehow accidental, or just negligent and not deliberate. >> the basic presentation that she made was that she was just completely oblivious that it would make a conflict of interest and that one of superiors were aware and no one raised a flag and so there was no case from people that should have known if there was a conflict and since they did not indicate to her, she felt that she was acting appropriately. >> and what about that statement to the staff was believable? was that a typical occurrence, that if the senior member does not raise an eye brow, is that
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typically considered evidence that. >> it is just making a determination without any evidence to contrary. we have to make assumptions based on oral testimony. >> okay. >> by the way, is her testimony under oath to you? >> no. >> mr. andrews? >> so also on page seven and this is, we may or may not know this, it says that the respondent was a member of the board of directors of green for all for 2009, to january of 2013. the respondent disclosed income for green for all for worth that she performed. and as the acting executive director from 2012, to 2013, and so she was on the board and
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2012, and 2013, did she, and and we have stepped down from the board to become the acting executive director and she also have been a voting member on the board of directors and an acting executive director? >> i don't have the answer to that question. i'm assuming that she remained as a member of the board. and i don't, i never asked her the question of whether or not she voted on the board for green for all during that time. >> because within that, just within that organizational structure, you could find yourself having a conflict of interest, undue influence on deciding should you take the contract, and is it something that we should do, and is it something that we should not do? and it just, generally, is a practice, and in different by laws, and differently for different non-profit and corporations and it is just a general, and often they do step down as an acting executive
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director when there is the opening at the ceo and the eeed level but usually they recuse themselves from voting during that process to avoid any undue influence or conflict of interest. >> and that may have happened. >> i would assume for these purposes, that she has the member of the board had the right to vote. and her membership on that board, in and of itself is not a conflict with her position at the puc and it was when, scoping a contract, that would eventually go to that board, that is where the primary conflict came in, by the fact that when the director took maternity leave and she stepped in as the acting director for a salary and that complicated and intensified the conflict. one of the indicators that i did leave out back to your question was that she did report that income on her 4700 which say public document. and so, she was not trying to